5 



/ 



EEVOLtTTIOlSrA-Rir CLAIMS. 



SPEECH 



OF 



HON. REUBEN E. FENTON, 



OF NEW YORK. 



Delivered in the TJ. S. House of Representatives, May 18, 1860. 



Mr. FENTON said : 

Mr. Speaker: In reference to the billwhich 
I had the honor to submit to the House, " to 
provide for the settlement of the chiims of the 
officers and soldiers of the Revolutionary army, 
and the widows and children of those who died 
in the serTice," I desire to say that I am con- 
stantly in the receipt of letters from all parts of 
these United States, asking why it is that so 
much delay has attended the passage of this 
bill? Will each member of this House aid me 
to answer? Will each member contribute to 
relieve me from the arduous duty, by co-op- 
erating to hasten linal action on the bill? 

In my remarks to the House on this subject 
during the last Congress, I expressed myself 
very fully in support of the justice and legal 
rights of these meritorious creditors, so that 
very little additional can be said by me to com 
mend them to the approval of Congress, and to 
incite in the minds of members a desire for 
their immediate adjustment. It is very little 
benefit to creditors to have committees investi- 
gate and report claims merely to be placed on 
the Calendar, there to remain until called into 
like incipient vitality at the next Congress, only 
to meet like renewed postponement. If they 
are, as I believe them to be, beyond the shadow 
of a doubt, DEBTS — legal, meritorious debts — 
due from the United States to these creditors, 
they ought to be paid — paid now, paid with 
the same promptness, with the same apprecia- 
tion of duty and right, as we ourselves ask to 
be paid our salary. They claim only $240 per 
annum for the services rendered and the suffer- 
ings endured by their fathers in the great 
struggle for independence, whilst we enjoy the 
Government they established, in possession of 
the highest honors, and a salary of $3,000 per 
annum. 



The people of this great nation cherish a love 
of justice. They are willing to pay liberally — 
they insist upou paying honorably ; and the dis- 
charge of duty will ever command their appro- 
bation ; but tliey will not be, and they should 
not be, content, if we manifest indifference to 
their rights. They will hold us, as they should, 
to a strict accountability. It is unfortunately 
true, that individual claims against the Gov- 
ernment receive too little attention from the 
Representatives of the people. They cannot 
sue the Government; they have no remedy 
only such as we have the power to furnish ; and 
yet who does not know that they travel up the 
broad passages to this Hall, year after year, 
until time grows weary, sad with oft-repeated 
disappointments, and at last turn away with 
feeble step, leaving the prosecution of their 
claims to their children, and oft-times entailed 
upon their children's children, or abandoned ia 
despair of obtaining justice at the hands of 
their servants ? 

The applicants provided for in this bill do 
not ask us to pay them for the fortunes and 
many years' service rendered prior to the date 
of the contracts for half pay. They ask nothing 
for losses for depreciation of Government paper. 
They ask nothing for their fortunes, which they 
expended to acquire this Government. They 
ask only that we should do an act of justice; 
that we should discharge a legal and sacred ob- 
ligation. They ask the payment of these half- 
pay debts — ^ 

1. Because, by the principles of law and 
equity, they are positively due. 

2. Because they are free from all possible in- 
fluence of conjecture or uncertainty. 

3. Because the amount is unchangeably fixed 
by a recorded public law. 

The payments which have ever been made 



L 2-7 J I 






on account of the same are all recorded. Noth-' 
ing is left to conjecture ; nothing to unwrit- 
ten or unrecorded evidence. The payments 
made towards these sacred contracts in certifi- 
cates are to be deducted, not at their depre- 
ciated value, but for their full amount ; and no 
Congress, it seems to me, can disregard the 
rights of these creditors. In the very able re- 
port of Mr, Burgess, made February 11, 1858, 
the committee say : 

" That, in their opinion, the delivery of those certificates, 
as well on general principles as on those which govern 
courts of law and equity, did not annul the right of half 
pay, or exonerate the Government from the obligations of 
the original contract. Such of those officers as had survived 
the war, and continued in the service until peace, became 
severally and individually vested with a complete right to 
the reward of half pay for the residue of their lives. The. re- 
ward was gallantly won at the point of the sword ; it was the 
price of our independence, purchased with blood, and se- 
cured hy public faith." 

In order to remove all objections to the pas- 
sage of this bill, by reason of the present de- 
pletion of the Treasury, it provides that what- 
ever may be found due shall be made payable 
in United States stocks, at fifteen years, re- 
deemable at the discretion of the United 
States at any previous time. And notwith- 
standing a special act of Congress, of June 3, 
1784, expressly provides that these creditors 
should receive interest, that is excluded from 
this bill. 

It will not be forgotten that these parties do 
not come here to ask us for a pension or to 
collect the arrears of a pension ; but to ask the 
payment of a legal, meritorious debt — nay, 
more, a preferred debt. The eighth article of 
the old Confederation authorized Congress to 
make contracts to carry on the war, and the 
twelfth article made all debts thus incurred a 
charge against the United States, " for the pay- 
ment and satisfaction whereof the said States 
and the public faith was solemnly pledged." 

It will be seen that the Government had be- 
come insolvent, and Congress declared, by act 
of April 18, 1*780, that the certificates which 
had issued, or which should thereafter issue, 
should be discharged until further order of Con- 
gress, at the rate of jortij dollars for one ; that 
the officers having sacrificed fortunes as well as 
five years of service, Congress, in order to 
guard them, if possible, against loss for their 
subsequent services, by the act of October S, 
1780, promised those officers who should serve 
to the end of the war, or until discharged, seven 
years' half pay, in " specie, or current money 
equivalent ; " and eighteen days afterwards 
Congress extended the act to half pay for life, 
which, by construction of law, was also payable 
in the same- way. Here, thejj, is a debt, a 
special debt, the only obligation of the United 
States which was made payable in " specie, or 
current money equivalent." Assuming this 
great fact, to say nothing of the fortunes which 
had already been expended by these creditors ; 
who can doubt that those debts were designed to 
be preferred before all others against the GFov- 



ernment ? "Who can doubt that this was design- 
ed to be the first mortgage on the public faith 
and public doxna.m—Jirst in the hearts and mem- 
ories of that and all succeeding generations ? 
They achieved our independence and estab- 
lished this Government which we now enjoy. 
The sacrifices which the fathers of these cred- 
itors made, and the public domain which they 
acquired, the United States now hold in trust 
for their children. Over one thousand million 
acres of land still remain undisposed of. 
Whilst we seek to commemorate and perpetuate 
the achievements and memory of their fathers, 
we withhold from the children that which, in my 
judgment, is legally, equitably, and justly, their 
due. If due to the fathers, it is due to their 
heirs. 

It cannot well be denied that these half-pay 
debts rest on strict, legal, and well-defined 
principles of law ; and no one should hesitate to 
declare that justice and good faith demand that 
the United titates should pay, or secure with- 
out delay, the principal and interest due to 
those creditors, the great benefactors of our 
country. Not wishing the House to rely on my 
expositions, I first recapitulate the laws on 
which these contracts are founded. Though 
there may be a diflerence of opinion as to the 
legal demands of those creditors, there can be 
none in the fact that the officers must have 
sustained losses in the reception of Government 
money, much more than are now claimed fof 
half pay. 

It is time to settle the question in this Gov- 
ernment, whether there is or can be, under our 
Constitution and our laws, any vested rights 
which shall not be subject to be abrogated 
by Congress ; whether, it Congress at one ses- 
sion makes a contract by which a certain sum 
is to be paid in " specie, or current money 
equivalent," the next or some subsequent Con- 
gress can substitute a new contract in its place, 
without the individual consent of the party, and 
pass a law fixing a value to that contract. In 
the case under consideration, the second con- 
tract was made payable in specie or securities 
such as shall be given to other creditors. And 
again, another act was passed July 4, 178;», 
directing the Paymaster General to adjust all 
demands with the officers and soldiers ; not to 
pay in "specie, or current money equivalent," 
but simply to issue certificates: 

" Resolved, That the Paymaster General be and he ishcre- 
by fully authorized and empowered to settle and finally ad- 
just all accounts whatsoever between the United States and 
the officers and soldiers of the American army, so as to in- 
clude all and every demaad which they or either of them 
may have by virtue of the several resolutions and acts of 
Congress relating thereto, and that the said Paymaster do 
give certificates (not money or securities) of the sums which 
may appear due on settlement in the form and manner which 
the suporiutendent of the finance of the United States may 
direct:" 

Not described to be such as " should be given 
to other creditors" — 

'■ Prondtxl, always, That the certificates to the oflScers 
shall be delayed for a reasonable time, to obtain returns of 
payment or advances to them by the Slates or public Do- 



partmonts, where, in tho opinion of tlie Paymaster General, 
such delay shall be necessary." — Acl, of July i, 1783. 

None but invalid officers permitted to return 
their commutation certificates: 

" Iteiolved, That invalid olBcers bo permitted to return tho 
anionnl of commutation in other securities of the United 
Hliites, where they have parted with their own, provided the 
same shall be of equal amuunt, bearing the same inter- 
est." — Acl of Sepleviher 14, 1788. 

But the act did not extend to other officers, 
and this way connecting the half pay with all 
other suras due the officers, for which these 
same class certificates were given. I cannot 
omit to call the attention of Congress to the 
fact that the officer of the Government, before 
its own court, should have found it necessary, 
in defence of the United States against the.se 
just claims, to assign as a reason and induce- 
ment on the p8.rt of the officer to receive these 
commutation certificates, that, while Congress 
made these contracts, they had no power to in- 
duce a compliance with them, and say : 

" The States at this time were the real sovereigns ; Con- 
gress was a mere assembly of ambassadors. Tho army was 
in the pay of tLic States ; the officers were appointed by them, 
though commissioned by Cougvcss. Whatever Cougress 
might resolve was of no effect, unless concurred in by tho 
States ; and the officers of those States in which the hall-pay 
system was regarded with aversion must have felt th.-U it 
w-ould be dangerous to brave public sentiment at home, re- 
lying upon uo other support than that of Congress." 

And that this induced the officers to request 
a commutation. But he also says — 

" That the offer of commutation made in the resolution of 
March 22, 1783, did not, and was not intended, to deprive 
the otficers of the benefits of tho resolution of 1780, but was 
made in order to enable the officers to relieve themselves 
from the odium which was raised against them in some of 
the States, as the recijiients of pensions from tho Federal 
Government, and as being thus distinguished from the mass 
of their fellow-citizens."' 

And, notwithstanding it is conceded that the 
provisions of this act of March 22 wholly 
failed, he contends — 

" That the acceptance by any officer of the commutation 
oflfercd by Congress in the resolution of March 22, 1783, 
was an accord and satisfsctiou, and, in law, was a full dis- 
charge of the promise contained in the resolution of October, 
1780." 

Now, the facts are, that these certificates were 
not delivered by any " agreement" of the par- 
ties, but were charged to, sent, or delivered to 
these creditors, in pursuance of the law of July 
4, 17^^Sp-arid by the imperative rules of the 
Paymaster General. The act referred to, by 
which all demands against the Government are 
alleged by the opponents of these claims to be 
settled, left the Paymaster but one way, and 
one only, and he adhered to that most rigidly. 
Neither the justice of these meritorious debts, 
nor the pressing wants of the officers, could 
save them from the imperative rules of the Pay- 
master General, and yet the solicitor endeavors 
to distort this deliberate wrong, this great exi- 
gency of a then impoverished Government, 
into an arrangement of the creditor. And now, 
Mr. Speaker, I ask, who, from amono;the origi- 
nal creditors, shall be ^preferred ? Those who 
did, or those who did not, receive the commu- 
tation certificates ? In the case of Dr. Baird, 



the Government concurred in recognising the 

latter class. 

Let us suppose one of those officers — say a 
captain — to whom was due, on account of ad- 
vances and arrears of pay, say $5,000, and 
commutation $2,400 : all was directed to be 
paid in certificates, worth, at the time, $740 — 
and the United States could then have pur- 
chased them at that price — on which the re- 
ceiver must sustain a loss of $6,G60 ; one class 
of officers give encouragement to Government 
in its infancy and weakness, by continuing to 
share in its financial relations ; by obeying its 
laws in the receptic^tof its depreciated paper ; 
trusting to its integrity, in the hope that the 
security promised and contemplated in the acta 
of January 25 and March 22, 1783, would still 
be furnished ; and receive these certificates, 
not only for advances, not only for arrears, but 
also for commutation — asking nothing now for 
the loss of the $(),G60 ; only asking Govern- 
ment to deduct the whole amount paid him, not 
at its value, but at the face of the certificates, 
and pay him the balance. Let us now suppose 
another of equal rank, entitled to the same 
sum, directed by the act of July 4, 178B, to re- 
ceive the same amount in those depreciated 
certificates, and refuses to receive the same, 
and now appears before Congress, asking his 
half pay: which of this class, I ask, should be 
entitled to the highest consideration? Why 
should not the man who has sustained a loss 
of $(J,660 be preferred to the man who has 
sustained no loss ; the man who obeyed a posi- 
tive law of his country, to him who escaped a 
loss by refusing to obey the law ? 

I beg to direct your attention to the views 
expressed by the late Secretary Woodbury, in 
1828: 

" But they have averred, and it Is again repeated, that 
these olBcers are seeking a right, and that is a right both on 
common-law and on chancery principles. But if on only one, 
whether it be a right on strict common-law principles, or on 
chancery principles, it is equally a right, and tho clainr is 
equally a legal claim. The forum in which it becomes a 
right does not alter its legality. Hence, if every gentleman 
would agree with him from Virginia, [Mr. Tyler,] that the 
statute of limitation should be scorned, and thai the pretended 
payments made to these otHcors was 'mere wind, mere 
trash,' 1 aver that, in any forum, before any court or jury 
in Christendom, this right, as between individuals, could 
now be unanswerably established. Let the issue be formed, 
and the cause tried to-morrow, and no three or Ave judges, 
uo twelve ' good men and true,' as jurors, could say that the 
wages of toil and blood, the solemn promises for sacrifices 
and sufferings, to secure the liberties of America, had ever 
been discharged by only ' wind and trash.' " ♦ • « 

" Without dwelling a moment on considerations before 
urged in the argument, in favor of tho legality of this claim, 
let me ask, what has been the reply to the position of the 
committee, that, on strict legal principles, tho promise of 
half pay for life has ever been fulfilled? Has any one shown 
that the half pay, in tho form of hall' pay, has ever been 
paid ? No pretence for it. Has any one shown that the half 
pay has ever been technically released? No pretence for 
it." • * • 

" How, then, has the promise of October, 1780, been ftil- 
filled? In no Nvay, except by the act of commutation. But 
it could not be fultjllod by that act, im less all things were 
transacted in conformity to tho provisions of thalact." • ♦ 
" Everybody feels, and knows likewise, that tho payment, 
to bo In conformity to the acl, was to have been money, or 
at least Kocurities equivalent to money, when, in truth, it 
was neither ; and even under the most favorable view, if 
tho certificates were kept till the funding, fell short of what 




and every lawyer, every coustiliilional statosmau, must 
admit that, on strict legal principlof, there should not only 
have been a conformity to the copimututiou act, but, in the 
act itself, to make it binding, there should have been a re- 
gard to private vested rights." 

This, then, was the opinion of an able lawyer 
and statesman, a most able and honorable 
judge and representative, a safe and most re- 
liable counsellor. Will you adopt his opinion, 
or will you examine the laws on which they are 
founded, and decide for yourselves ? 

Mr. Speaker, I would call the attention of 
the House to the fact, that notwithstanding the 
United States became the assignees of the pub- 
lic domain, and, by the sixth article of the 
Constitution, became liable for all debts and 
engagements of the old Confederation, yet the 
only way in which they attempted to discharge 
these commutation certificates was by the fund- 
ing law and a subscription loan by those who 
held them, by which the holder was to receive 
only about two-thirds of the amount. 

The first consideration named in the contract 
of September 16, 1776, promised land to the 
officers and soldiers, or their representatives. 
And, although this obligation was entered into 
by the old Confederation, it is equally binding 
on the present. 

The sixth article of the Constitution pro- 
vides, 

" That all debts contracted and engajjements entered into 
before the adoption of this Constitution, shall be as valid 
J against the United States, under this Constitution, as under 
the Confederation." 

ACTS ON WHICH HALF-PAT DEBTS ARE FOUNDED. 

1. The act of September 16, 1776 : 

" Baolved, That, in addition to a money bounty of twenty 
dollars to each non-commissioned officer and private soldier. 
Congress make provision for granting lands, in the following 
proportions, to the ollicers and soldiers who shall engage in 
the service, and continue therein to the close of the war, or 
until discharged by CoDgress, and to the representatives of 
such ofBcers and soldiers as shall bo slain by the enemy. 
Such lands to be provided by the United States; and what- 
ever expense shall be necessary to procure such land, the 
said expense shall be paid and borne by the States, in tho 
same proportion as tho other cxpoiiaeR of the war, namely : 
to a colonel, five hundred acres; to a lieutenant colonel, four 
hundred and fifty acres; to a major, four hundred acres; to 
a captain, three hundred acres; to a lieuteHant, two hundred 
acres; to an ensign, one hundred and fifty acro.s; each non- 
commissioned offlcor and soldier, one hundred acres." 

2. And Congress afterwards was obliged to 
add the resolve of May 15, 1778 : 

" Resolved, unanimoxisly , That all military officers commis- 
Bloned by Congress, who are now or hereafter may be in 
the service of the United States, and shall continue therein 
during the war, and not hold any otUce of proUt under those 
States, or any of them, shall, after the conclusion of the war, 
be entitled to receive annually, for the term of seven years, 
if they live so long, one half of tho present paj' of such ofll- 
cers : Provided, 'fhat no general offlcor of tho cavalry, artil- 
lery, or infantry, shall be entitled to receive more than one 
half part of the pay of a colonel of such corps, respectively." 

3. Seven years' half pay, iri specie, or cur- 
rent money equivalent : 

" Resolved, That the Commander-in-chief and commanding 
officer in the Southern departmont direct the officers of each 
State to meet and agree upon the olllcors for Ui>i regimi-nts 
to bo raised by tlicir respcciivo St.U,\s, from those who iu- 
cUue to coutiauu in service; and where it cannot be done by 



who shall continue in the service to the end of the war shall 
be entitled to half pay during hfe, to commence from the 
time of their reduction." 

This last contract was payable in specie, or 
current money equivalent — made at a time 
when, by positive law of Congress, the certifi- 
cates of the Government were to be discharged 
at the rate of ninety-seven cents discount on 
every dollar. 

4. The act of May 15, 1778, was extended to 
the widows of those officers who have died or 
shall hereafter die in the service : 

"Resolved, That the resolution of the 15th May, 1778, 
granting half pay for scveu years to the officers of the army 
who should continue in service to the end of the war, be ex- 
tended to tho widows of those officers who have died or shall 
hereafter die in the service; to commence from the time of 
such officer's death, and continue for the term of seven 
years; or if there be no widow, or in case of her deulh or 
intermarriage, tho said half pay be given to the orphan chil- 
dren of the officer dying as al'oresaid, if he shall have loft 
any." — Congress, August 24, 1780. 

5. These acts were reaffirmed and extended 
by act of December 31, 1781: 

6. These claims are again reaffirmed, and 
made preferred debts, by the resolution of June 
3,1784: 

"That an interest of six per cent, per annum shall bo 
allowed to all creditors of the United iStatcs, for supplies fur- 
nished, or services done, from the time the payment became 
due." 

This extended to all their arrears of pay, long 
due, as well as to their half pay. Chief Justice 
Gilchrist, in a recent decision, in alluding to 
this resolve, says : 

" No language could be more express or free from doubt 
than this. The resolution was passed, from a feeling that it 
was just and right that interest should bo paid from the time 
the half pay became due ; and it was a voluntary contract 
on the part of the United States, constituting a legal claim 
against them, which no subsequent legislation could release 
without the consent of the other party." 

This act not only affirms these obligations to 
be preferred, and to be still a subsisting con- 
tract, but they are further confirmed by the lat- 
ter act — March 8, 1785 : 

" Resolved, That the officers who retired under tho resolvt 
of the 31st Deeember, 1781, are equally entitled to half pay 
or commutation, with those officers who retired under the 
resolves of the 3d and iilst October, 1780." 

The history and the relations T>f these cred- 
itors with the General Government ought no( 
to be forgotten, in connection with the contrac! 
for half pay for life, that the Government was 
driven from one expedient to another, whicl 
the imperative necessities of the moment re 
quired, to induce engagements for the war, as 
will be seen by the following summary : 

" 1. Promising grants of land — September 16, 1776. 

" 2. Seven years' half pay to those who should serve t( 
the end of tho war— May 18, 1778. 

" 3. Seven years' half pay , in specie or current money, U 
tho sup(M-numerary officers, to commence January 1, 1781 
as also grants of land — October 3, 1780. 

" 4. Not being able to meet the half pay of a single year 
in specie tjr current money, they increase the seven years 
half pay to half pay during life— October 21, 1780. 

"5. As peace had boon conquered, and the Govcrnmen 
W!>re unable to pay the officers their arrears for moiuhl; 
IK'iy, or to make any provision for their half jxiy during life 
they resorted to another cspcdieut, of promising the officer 



five years' tail pay, in specie or sccurites, with interest, 
payable annually — March 22, 17S3. 

" 6. Not being able to pay or secure this small amount of 
their claim, resorted to iinolhor desperate expedient, and 
caused the Paymaster General to issue and send to the ofh- 
cers more of these repudiated certificates, as specie and se- 
curities. 

" 7. Not being able to pay the interest of a single year, 
repudiate them. 

" Finally, resorted to a funding act, by which the new 
Government propose an arrangement by which there is to 
be no distinction between the olUcer who h;is been charged 
$2,400 in commutation, and the person to whom he has sold 
them at the value fixed by law — for sixty dollars." 

What, then, can be said in answer to these 
claims ? 

1. It is attempted to he shown that the act 
of March 22, 1783, promising live years' full 
pay in specie or security, instead of half pay 
for life, was passed at the request of the officers. 
It is conceded that the half pay debts were never 
paid as half pay, nor was the act for five years' 
full pay ever fulfilled, but utterly failed to re- 
deem its engagements. Not only so, this act 
was wholly dependent on the resolve of Janu- 
ary 25, 1783, and the securities contemplated 
and promised in that act, which became a part 
of the act of March 22, 1783. For the purpose 
of correcting the erroneous impressions of the 
public and Congress in relation to the objects 
embraced in the request of the few officers re- 
ferred to, I have felt it my duty to give it in 
full. It will be seen, by that and the answer 
of Congress, that the distress of the officers was 
very great, and that the request involved the 
anticipation of having all their claims secured, 
which, in many instances, amounted, for ad- 
vances and services, to ten times more than 
the commutation. The manner in which the 
commutation was to be secured, having been 
omitted in the act of March 22, and the half- 
pay debts being payable " in specie or other 
current money," the United States were bound 
by all the principles of law to pay in specie or 
give such security as was contemplated in the 
act of January 25, 17S3. It is admitted by the 
Government that the act of March 22 did not 
repeal that of October 21, 1780, and therefore 
the Paymaster General had no right to charge 
and force upon the officers those valueless cer- 
tificates as full pay. 

^^j^Because, by the terms of the act itself, the 
officers were expressly prohibited from express- 
ing ^eir dissent to the same, individually. 

2. Because this resolve was not passed until 
after the peace — after the contract had been 
fuljilled on the part of the officers. 

3. Because it was well known to Congress, 
at the time of the passage of that act, that the 
Government had no power to comply with any 
of the conditions of that act, either to pay said 
officers in specie or give them security. 

The answer of the officers to the resolves of 
Congress of the 25th of January, 1783, proves 
conclusively that they were induced to consider 
the proposition of five years' full pay in connec- 
tion with the expectation that they would re- 
ceive an amount of money and have all their 
other and larger claims, as well as the com- 



mutation, made safe "by substantial funds." 
Therefore we find, that on the 15th of March, 
1783, seven-days only previous to the passage 
of this act, after hearing a most patriotic and 
thrilling address of General Washington, these 
officers — 

" ii'eMfi'frf, That the unanimous thanks of the officers 
of the army be presenied to his Kxceileiiey ihe Coni- 
maiideriii-ebief, for his excfllenl adore.-s, and t!ie com- 
muiiicaiion he has been pleased lo make iliem, and that 
he 1 e assured that the oflieers reciprocate his wffeclioiiaie 
e.\■l^^es.^lonb with ihn g'eaiest sincerity of which llie hu- 
man mmd can be capable." 

The address from the army to Congress, the 
report of the committee from the army, and the 
resolutions of Congress of the 25th of January, 
1783, being read — 

•• Htsolved, unanimously, That the army continue to 
have an unshaken coiilideiice in the ju.*tice ol Congress 
and their country, and aie lully convinced that the Kepre- 
.^eniatives of Ainerica v\ill not disband or disper.^u llie 
army until their aeeouiits are liijuidated. the balwuce ac- 
curately ascetiained, and aurcjuii.e funds established for 
payment, and in this arrangemtfiii the otlicers txiieci that 
iiic haii'pay, or coniniutauoiicf it, should be etKeaeiously 
compreneiultd 

•• litsolved, unaninwiisly, Tliat," &c.,&c., " that the pro- 
ceediiiff,^ of this d.iy be iran^tnitled by the President to 
Major McUougal,aad thai, he be rciiUfsted to continue liis 
solicitations at Congrirs.s until the oLiject of his niissioa 
tiad becii aecoinplisiied,'' 

The States failing to comply with the re- 
solves of January 25, 1783, Congress found it 
necessary to pass the law of October 18, 1783. 
On the i8th October, 1783, (4 vol. Journals by 
Way & Gideon, p. 2yy,) Congress adopted a 
proclamation announcing the peace, and that 

•• In the progress of aa arduous and difficult war, the 
armies of the United t^tates of America have eminently 
displayed every military and patriotic virtue, and are not 
lesc. to be applauded for their fortituue and niagnaniinity, 
in the nio.si iiyiiig scenes of distress, llian f jr a s-ries of 
heroic and jllusirious achievements, which exalt them to 
a high rank among the most zealous and suecesstul de- 
leiiuer.i of the riglils and liberties of niankmo." * » * 
'• We ihereibre, lUe United States in Congress assembled, 
thus impre.'sed with a lively sense ol the distinguished 
merit and good conduct of the said armies, do give them 
tlie thanks of the country, for their long, eminent, and 
taiihful services; and it is our will ana pleasure tliat 
such of the t-ederal armies as stand engaged lo serve du- 
ring the war, and a*, by our acis of atiili May, the Uth 
day of June, the 9ih day of August, and the itiih day of 
SepteniLier last, v/cre furioughed, shall, from and alter 
tho 3d day of November next, be «bsnlutely discharged, 
by virtue of this our proclamation, from the said service; 
and we do also declare that the lurlher services in the 
held of llie othcers who are oeiangtd and on furlough, in 
conseiiuence of our aforesaid acts, can nowie disjieiised 
wiUi, and liicy have our full permission lo retire foin ser- 
vice without being longer liable from their present eii- 
gagtmeats to be called into eommand.'' 

By which it is clearly proved, that all the 
propositions made by Congress to pay the half 
pay or commutation in specie or securities 
tailed. It is therefore impossible to imagine 
that these depreciated certificates charged to 
the otlicers could in any way impair the half- 
pay contract. The only question which could 
possibly arise would be, what amount these 
creditors should allow for said certificates : 

" (here is no rule of law more clearly settled or sus- 
tained by higher authorities tlian tlial. 

'■ An allowance of a portion of a debt as the balance 
due, and the reception by ihe creditor, is no bar or coiu- 
proinise of the claim. 

'The principl of compromise, by the pay nrent of a less 
sum, always presumes — 

'■ 1. Thai u 18 iniide free from compulsion. • 



"2. That there has been no concealment or misrepre- 
seiiiatioii by the debtor of his pecuniary condition. 

'•3 That at the time of the receipt of a l-iss sum as a 
compromir^e, it inu>t also be presumed that the creditor 
ha« the oppoiiuiiiiy of enforcing his claim by a court of 
law." 

And it is well known that these creditors 
were excluded by law from sueing the Govern- 
ment until a partial jurisdiction was given to 
the Court of Claims. The poverty of the old 
Confederation up to the time of its expiration, 
and its consequent inability and failure to 
make provision for payment, or security for 
pavment at some distant time — or even for the 
payment of interest, which was payable annu- 
■^\\j — precludes the idea of any assent of the 
oflicers to receive these certificates as an ac- 
cord and satisfaction of the half-pay debt, 
which was payable in specie or current money 
equivalent. 

In the case of the United States vs. Dickson, 
15 Peters,' p. 162— 

'•The Supreme Court of the United States say that the 
conslruclion sjiven to the laws hy any department of the 
3-;xtcuiive Governmeiii, is necessarily ex jianc wiihoui i 
the benefit of an opposing argument, in a suit where the 
very matter is in controversy ; an i when the construction 
is once s'ven. iliere is no opportunity to question or rrvise 
it by tlifise who are most iriterestcd in u as olUcers, < e- 
riving llieir snlary and emoluments tlierefroiii ; lor they 
canunl bring the lest by a judicial decision. It is only 
when the) are sued by the Government for some supposed 
balance, thai they can assert their rights. If tiie tenor of 
th':; law be not mantlatory of a mere ministerial act to be 
done, then tue liead of Oepartment acts according to nis 
discretion, ill su'iordination always to his co. .sti utional 
and leftal relation to tlie l^resideniof the United :>lates.-'— 
DtcaluT vs. Paulding, 11 FcUrs.p. 479. 

It may happen that a claim shall arise, 
which, according to the plain terms of the law, 
is not within its provisions, or which is not 
proved by the evidence which the law pre- 
scribes, and so is rejected by the Secretary. 
In such a case, the claimant may apply to 
Congress, and that body may pass a private 
law for the relief of the party, dispensing with 
its own condition of applicability, or its pre- 
scribed rules of evidence. But no such dis- 
pensing pow^r resides in the Secretary. 

It was settled to be no bar, even where Con- 
gress, in the act allowing it, declared it to be 
for the half pay for life. (Case of Thomas H. 
Baird.) 

The declarations of those who were cotempo- 
raneous with the events of the early days of our 
Kepublic, atid who voted for the act of March 
22, 1783, prove that these certificates were ac- 
cepted with reluctance, or forced upon them. 

Mr. Smith, of Maryland, contended that uone 
of the Maryland line ever expressed their con- 
sent to the act of 1783 : 

" They, tbcrefore, could never, in fact, have come under 
the jirovjsions of the commntaliou law. It was trno, that 
■when they came home from service they Ibimd that the law 
had passed, and that they must take the commutation or 
luilbmg. The altermitive was, to take it or sUirve, and it 
was not unnatural to suppose that they choso the former. 
This was the case with the whole Maryland line." — Vebates 
in Congress, 1827-"28, vol. i,paH 1. 

"Mr. Madison, who was in Congress in 178.'?, and voted 
' ay ' on the passage of the commutation resolution, says, in 
the course of the debate refonod to, in 1790, was this depre- 
ciated paper (commutation certificates) freely accepted f No. 
The Government oa'ercd ihator nothing. The relation of the 



individvial to the Government, and the circumstances of tha 
offer, rendered the acceptance a forced one, not a free one. 
The same degreeof constraint would vitiate a transaetien be- 
tween man and man belbro any court of equity on the face 
oftheearth." » * * " Here, "then, isadebt acknowledged 
to have been duo, and which was never discharged, because 
the payment was forced and defective." — Annals of Con- 
gress, vol. 1, pp. 1230, loOS. 

"Colonel iiartley, who was an officer in the late army, 
says, also, that these certiUoates wen; not accejited by the 
soldiers willingly as an equivalent for their services, but 
Congress forced them to accept of them as the only alterna- 
tive."— ifcid., p. 1:209. 

The utmost that the United States can, of 
right and in honor, ask of these creditors is, to 
be allowed the full amount of these certificates 
towards the half pay contract. 

It appears to me that the sacrifice on these 
certificates, for the large amount of arrears of 
pay and supplies furnished, due these officers, 
is quite suthcient, without an attempt on the 
part of the Government to sacrifice the rights 
of the officers, vested under these contracts for 
half pay. 

Mr. Speaker, before proceeding to the last 
point involved in the discussion of this ques- 
tion, I will be allowed to refer to the action of 
the Thirty-fourth Congress, in confirmation of 
the opinion of the court, delivered by the late 
able and much-lamented Chief Justice Gil- 
christ, in the case of Thomas H. Baird, admin- 
istrator of Absalom Baird, who was a surgeon 
in the Revolutionary army, and in which this 
question of accord and satisfaction seems to 
have been conclusively settled. 

In that case. Congress, in 1836, directed that 
he should be paid his five years' full pay, which 
is declared in the act to be his commutation or 
half pay. In 1837, he again applied for the 
interest, and this claim was, in 1855, referred 
to the Court of Claims, and the Chief Justice, 
Gilchrist, in delivering the opinion of the court, 
says: 

'• The proceedings in relation to the claim for commutation 
do not appear to be very material in rolutiou to the case in 
the present position. On the 'IZiX of March, 1783, a resolu- 
tion was passed, providing that the officers and others en- 
tillod to half pay tor life ' shall bo entitled to receive, at the 
end of the war, their live years' full pay, in lieu of half pay 
for life, in money — that is, specie — or in securities on inter- 
est, as Congress shall llnd most convenient.' Oh the "iSth 
of January, 1794, l)r. Baird applied for the bonelit of this 
provision, but ili'ed in the year 3800 — having, as is said m 
the report ol the Committee of Claims of the 5th of Febru- 
ary. 1855, ' became wearied and disheartened with delay.' 
In tlie year 1818, his son, Thomas H. Riird, having become 
of age, petitioned Congress for relief ; and on the 3d of 
March, 1856, the comroittee reported that 'Dr. Absalom 
Baird was entitled to the beuclit of the act of the 17th of 
January, 1781, extending the grant of half pay for life to the 
oflicers of the hospital department and medical staff.' No 
action was had upon the resolution until the 22d of Juno, 
18^6, when an act was passed grantuig five years full pay 
as commutation, under the resolution of 1783, but wilhoul 
interest. 

" Now, this claim does not depend for its validity upon any 
adniissiou contained in the act of 1836. But the Congress 
which passed that act must have considered that Dr. Baird 
had a legal claim of some kind ; otherwise, their conduct, in 
granting him live years' full pay, was wholly indefensible. 
11 is, howover, relied upon as alioal settlement of the claim. 
Upon any principle known to the law. this position is wholly 
untenable. It is easy enough to declare, ex cathedra, that it 
was a lin.il settlement. But it is extremely difflcult to ima- 
gine, in the absence of all evidence, what reasons can be 
urged for holding that the payment of a sum of money is of 
itself a discharge of a debt for a larger amount. A plea of 
payment of a small sum in satisfaction of a larger, is bad, 



even after verdict. (2 Parsons on Contracts, 130, and notes.)" 
This piinciple is familiar to evory lawyer. A debt may be 
paid by a fair and wcil-uudor.stooil compromise, carried 
failhlully into efl'cct. But here there was no curapronii.se. 
If it were a case between individual.s, no one wo\ild dream 
ofapijlying such a term to it. Tlie Dniteil States arc either 
bound hy principles ol law applicable to Iheni, or tbty are 
uot so bound. If they are not bound, there is an end of the 
discussion — lor then all reasoning is fruitless. If they are 
biiUud by the principles of law, it is imposirihle to regard 
the payment of live years' full pay, wiihout interest, us a 
satisfaction of iliis claim. There is no evidence thai 
either party so resarded it ; and, unless we set at defiance 
every piiiicipU of law, we cannot hold ihat one iniriy to 
a contract, without the consent of the other, can dijcnarge 
his debt hy the payment of a s . aller sum than the amount 
due" ♦ * ♦ '• I'he amount of Dr. Baird's haif pay 
was !!l;240 per annum, payable at the end of every year. 
He was entitled to this sum up to the. 27lh day of October, 
lstl)5, the day of his death, and interest on the payments as 
they became due, according to the express provisions of 
the resolutions of June 3, 17S4 '•' 

This, bill, reported by the Court of Claims, 
passed Congress, and was approved on the ISih 
day of August, 1856. This act of Congress 
was a public declaration and legal construction 
of this contract, and not only the rights of one 
or the joint and several payees of the same ob- 
lir'a^ioii, auder which all the others claim half 
pay ibr life, but each and all the others are 
equally aud justly entitled to the same relief. 
Aside from this decision of the court, confirmed 
by Congress, by no principle of construction 
known to law or equity can it be said that the 
promise for half pay has ever been fulfilled, 
either by the old or the new Confederation. 

These certificates, it is conceded, were never 
paid, but were funded by the holders under the 
funding law of August 4, 1790. Few, if any, 
at that time, were nitlie hands of the officers ; 
they had parted with them at their usual value, 
from five to twelve and a half cents on the 
dollar ; and those who had funded them re- 
ceived, in the course of thirty years, some two- 
thirds of their amount. But as this act ex- 
tended only to negotiable paper, it could not 
embrace the half-pay contracts ; and the ninth 
section expressly declares : 

" That nothing in this act contained shall be construed 
in any wise to alter, ahridg*". or impair the rights of those 
creditors ol tiie United Stales who shall not subscribe to 
the said loan, or the contracts I'pon which their respective 
claims are founded ; but the contracts and rights siiall re- 
main in full force and virtue." 

These sections of the funding act in fact de- 
clare a fi n al separation of these certificates 
from the contracts for half pay. The twenty- 
second section of the funding act of August 4, 
1790, provides : 

''That the proceeds of the sales which shall be made 

of lands in the VVestern territory now belonging, or that 

may hereafter belong, toihe Uni ed States, shall be. and 

are hereby, appropriated towards sinking or discharging 

\ the debts for the payment whereof the United Slates now 

\are. or by virluiS of tliis act may be, hoblen, and sha 1 be 

■^applied solely to that use, until the said debts shall be 

«lly satisfied."' 

\ These creditors, therefore, urge, that they are 

t asking for the creation of a debt, but, as 

ditors, they are seeking the payment of de- 

ds long since due, through their own funds 

I in the Goverutoent hands as a sacred 

These men conquered by their valor 

fed by their patriotism the lands to the 



States, and the States ceded them to the United 
States, to be applied to that use until the said 
debts were fully satisfied. No final settlement 
of these claims could have been presumed un- 
til the patent of the land had issued. (Story 
on Contracts, chap. 23, pp. 16 and 17 ; Minor 
vs. Bradley, 22 Pick'g, 459.) Until that time 
the officers were merely the factors or bailees of 
the Government, as such, for said certificates. 
The party receiving a bill or note is bound 
strictly to the performance of all the duties of 
holder or endorser, as the case may be ; and 
until payment is due, his right to sue upon the 
original claim is sitspended. So it was with 
the officers ; the right to sue the United States 
has been, ever since the judiciary act of 1789, 
not only suspended, but iios\t'i\t:\y prohibited. 
(See Story on Contracts, 579, chap. 1, p. 1083.) 
Upon the dishonor of the bill or note, the 
original rights of the creditor revive, and are 
the same as if the bill or note had never been 
given. 

The payees of the half pay contract were 
joint as well as several, and the promise or any 
law which affected one would extend to each 
and all the others. 

They were 2)rese7iled by the admission and 
restoration of the claim to all the survivors of 
the joint and several obligees of the half-pay 
contract under the act of May It), 1828, which 
restored the right of all the joint and several 
obligees who were deceased. Congress, by suc- 
cessive acts, passed at intervals from two to 
five years, continued to authorize the issuing of 
military land warrants to the officers and sol- 
diers of the continental lines, whose claims for 
bounty land remained unsatisfied — the last of 
which acts of extension was passed February 8, 
1854, which extended the time for discharging 
this portion of the contract up to the 26 th of 
June, 1858. 

All these claims for half pay for life were 
again opened, and they were presented by the 
joint resolution of the Senate of January 16, 
1828, wherein it is required that all those who 
had not received the land warrants to which 
they were entitled should receive the same. 
The acts granting bounty land of September 
16 and 18, 1776, strictly extended only to those 
who served to the end of the war. Justice to 
the memory of those who served many years, 
instead of fourteen days, who gained our liber- 
ties and established this Government, entitles 
them to have their names handed down to their 
children and future time by the records of the 
Government, at least in grants of land. This 
bill, however, confines the extension of the said 
act to those only whose claim shall be estab- 
lished by record evidence of service, or by the 
rule of the second section of the act of May 14, 
1856 ; and in case there be more than one child 
surviving, each shall be entitled to eighty acres, 
instead of one hundred and si.xty acres. 

In conclusion, Mr. Speaker, I have only to 
say, that in these investigations, requiring 



\ 



8 



much persevering labor, which has its only re- 
ward in the consciousness of the justice and 
honor of the claims and the thanks of the 
claimants, it is gratifying to know that I am 
advocating no new sclierae of public expendi- 
ture, no doubtful claim on the Treasury, no 
excessive payment, but a proposition full of 
justice and honor, and equity, and truth ; and 
which had the support of Mr. Madison, in 1783 ; 
Mr, Nelson, in 1810; Mr. Johnson, in 1818; 
Mr, Sergeant, December 10, 1819; Mr, Hemp- 
hill, January 3, 1826; Mr, Burgess, May 8, 
1826, and E'ebruary 11, 1828 ; the act of May 
15, 1«28; Senator Walker's report in 1852; 
Senator Evans's, February 4, 1854; and Mr. 
Broom, April 4, 1856 ; and their arguments 
and reports show a repeated recognition of the 
contract on the part of Congress, but no gen- 
eral provision appears to have been made by 
Congress for the relief of'these officers until the 
act of May 15, 1828, in which the contract of 
1780 is fully recognised. 

The committee to whom I referred this bill 
early in the present session, therefore, instruct- 
ed me to report it back without amendment, 
and recommend its passage. It allows half 
pay for life to the officers from the close of the 
Revolution to the date of their death, deducting 
therefrom all sums which have ever been paid 
to them by the Government by way of commu- 
tation or as pay, under the act of May 15, 1828. 
For the purpose of extending to the surviving 
children of the soldiers of the Revolution the 
benefits of the act of March 3, 1855, a section 
has been inserted for that purpose. The act 
referred to was doubtless intended to embrace 
their claims, but the word "minor" excludes 
them, as there are no " minor children " of the 
Revolution ; aud hence the necessity of further 



legislation in behalf of these meritorious claim- 
ants. 

The words of Washington in relation to these 
claims are as applicable to us as to the old 
Confederacy : 

"The path of our diiiy," said he. " is plain before u?; 
honesty will be louiul. on every experiment, to be the 
be>t aud only true policy. Lei us, then, us a nation, be 
just; let us fulfil the puulic contracts which Congress had 
undoubtedly a right to make, for ihe purpose o( carrying 
on the war, wiih tne same good faith we suppo.se ourselves 
uouiid to perform private engagements. 

" In ihi* state of absolute freedom and perfect security, 
who will grudge to yield a very little of his properly to 
support the common intere-t of society, and to insure the 
proiection of Government? Who does not remember the 
frequent declarations, at the commencement of the war, 
that we should be completely satisfied, if, at the expense 
of one half, we could defend the remainder of our posses- 
sions? 

" Where is the man to be found who wishes to remain 
indebted for the defence of his own person and property 
to the exertions, the bravery, and the blood oC others, 
without making the generous effort to pay the debt of 
honor and graiiiude? In wliat part of the (ontineiit shall 
we find a mtiii, or nody of men. who would not blush to 
stand up awd propose measures i)urposely calculated to 
roh llie soldier ot his stipend, and the public creditor of 
his due? And were it po.^sible that such a flagrant in- 
stance of injustice coula ever happen, would it not exciie 
the general indignation, and lend lo bringdown upon the 
authors of sueh measures the aggravated vengeitnce of 
Heaven? 

'■ As to the idea which I am informed has in some in- 
stances jirevailed, that half pay and commutation are lo 
be regarded merely in the odious light of a pension, it 
ought to be ex|)loded t'orever 

'• That provision should be viewed as it really was, a 
reasonable compeiisaiion offered by Congress, at a time 
wlien they had nothing else to give, to officers of the army 
Ijr services then to be performea. 

•' It was the only means lo prevent a total dereliction of 
the service; it was a part of their hire. 

"I may be allowed to say it was the price of their 
blood and your independence " 

It was more than a common debt ; it is a 
debt of honor ; it can never be considered as a 
pension or gratuity, nor cancelled until it ia 
fairly discharged. 



WASHINGTON, D, C. 
BUELL & BLANCHARD, PRINTERS. 
1860. 



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